Wednesday, March 4, 2009

Yoo Defends His Actions in Interview

John Yoo recently gave an interview to the Orange County Register discussing, in general terms, some of the decisions he made during his tenure with the Bush Administration and providing some thinly layered defenses of some of the legal memos that he crafted. It must be noted that he did not discuss and was not asked about the newly released memos that I have written about in my previous entries and this is presumably because this interview was conducted before these memos were made public.

Yoo does talk about how he came to be a "distinguished visiting professor" at Chapman University School of Law, how he has been received at Berkeley, and the crafting of various memos that gave President Bush vastly expanded executive power. Some samples from the interview:

The thing I am really struck with is that when you are in the government, you have very little time to make very important decisions. You don't have the luxury to research every single thing and that's accelerated in war time. You really have decisions to make, which you could spend years on. Sometimes what we forget as private citizens, or scholars, or students or journalists for sure (he laughs), is that in hindsight, it's easier to say, "Here's what I would have done." But when you're in the government, at the time you make the decision, you don't have that kind of luxury.

Q. Is there anything you would have done differently?
A. These memos I wrote were not for public consumption. They lack a certain polish, I think – would have been better to explain government policy rather than try to give unvarnished, straight-talk legal advice. I certainly would have done that differently, but I don't think I would have made the basic decisions

Q. Is it normal practice to give just the straight opinion?
A. I think the job of a lawyer is to give a straight answer to a client. One thing I sometimes worry about is that lawyers in the future in the government are going to start worrying about, "What are people going to think of me?" Your client the president, or your client the justice on the Supreme Court, or your client this senator, needs to know what's legal and not legal. And sometimes, what's legal and not legal is not the same thing as what you can do or what you should do.

Q. The Department of Justice is looking into the legality of some of the memos you wrote. Is this a possible cost?
A. I wish they weren't doing it, but I understand why they are. It is something one would expect. You have to make these kinds of decisions in an unprecedented kind of war with legal questions we've never had to think about before. We didn't seek out those questions. 9/11 kind of thrust them on us. No matter what you do, there's going to be a lot of people who are upset with your decision. If Bush had done
nothing, there would be a lot of people upset with his decision, too. I understood that while we were doing it, there were going to be people who were critical. I can't go farther into it, because it's still going on right now. I'm not trying to escape responsibility for my decisions. I have to wait and see what they say.

John Balkin observes:

These two disowned claims lie at the heart of the Cheney/Addington/Yoo theory of presidential power-- namely, that when the president acts as commander in chief Congress may not restrict in any way his military decision making, including decisions about detention, interrogation, and surveillance. The President, because he is President, may do whatever he thinks is necessary, even in the domestic context, if he acts for military and national security reasons in his capacity as Commander in Chief. This theory of presidential power argues, in essence, that when the President acts in his capacity as Commander-in-Chief, he may make his own rules and cannot be bound by Congressional laws to the contrary. This is a theory of presidential dictatorship.These views are outrageous and inconsistent with basic principles of the Constitution as well as with two centuries of legal precedents. Yet they were the basic assumptions of key players in the Bush Administration in the days following 9/11.

This is precisely what Yoo and others argued after 9/11, that the President could act as he pleased and could not be bound by laws, treaties, and even the Constitution. Yoo wouldn't have made his legal decisions differently, but would have added more "polish" to better explain that decision. In John Yoo's world, just because he wrote opinions which supposedly gave the Bush Administration these expanded powers, didn't mean that they had to use it. What on Earth would detract them from using these powers (that they were obviously interested in pursuing) if they had the advice that they could do so without being bound by documents like the Constitution? How ridiculous.

More memos and opinions need to be released and see the light of day so that investigations and prosecutions can take place. This type of assault on the rule of law and on the very foundation of this country cannot just be chalked up to "moving forward".

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